CRIM LAW OUTLINE - CANDEUB

1. Theories of Punishment
I. Utilitarianism: forward-looking; justifies punishment because it has positive consequences to
society, either through deterrence, incapacitation of the offender, or rehabilitation of the offender.
A. Deterrence: society benefits because would-be criminals will be dissuaded from their
misbehavior because they fear punishment.
i. General: deter society as a whole from committing that crime
ii. Specific: deter that specific individual from committing that crime again
B. Incapacitation: purpose is to protect the public from further crimes of the defendant
C. Rehabilitation: purpose is to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner
II. Retributivism: backward-looking; holds that defendants deserve to suffer for their wrongdoings.
A. Lex Talionis – eye for an eye; punishment needs to be proportional to the crime
B. It is the moral duty of a just society to inflict pain upon evil doers
C. Example: US v. Madoff
III. Expressivism
A. The process of punishment – the imposition of harm – expresses society’s moral condemnation
of the offender’s behavior
B. Example: US v. Gementera – ∆ stole mail and had to wear a sandwich board. Also deals with
“shaming principles”

2. Fundamental Principles of Criminal Law – Constitutional Defenses

I. Fair Notice Requirement: ∆s should only be condemned if they had a fair warning about the law’s
requirements but disobeyed it anyway
A. Five Elements of Fair Notice:
i. Written Statute Requirement
a. Statutes must be written and publicized so that the general public is aware that
certain acts are illegal and if they perform these acts, they will be subject to
punishment.
ii. Retroactivity
a. The law must come before the defendant has committed the action in question.
b. Anything else is retroactive punishment in violation of the Ex Post facto Clause of
Article I of the Const.
c. If it’s not unreasonable, unexpected, and indefensible, retroactivity is okay.
iii. Interpreting Statutes and the Common Law
a. In interpreting criminal law statutes, courts often consider the prior common law
crime that was replaced by the statute to help them get a handle on what the
legislature was trying to accomplish
iv. Vagueness
a. Addressing the vagueness of a statute that a potential ∆ has no idea if certain
conduct will violate the law or not
b. Example: loitering in Morales
§ Constitutional 2 prong test of whether criminal statute would be invalidated:
o (1) Failed to provide the kind of notice that would enable ordinary
people to understand what conduct it prohibits
1
 o (2) It may authorize and even encourage arbitrary and discriminatory
enforcement
v. Rule of Lenity
a. Judge made law
b. Basic rule that if statute is ambiguous we will read it in a way that will help the ∆
c. MPC makes no mention of the rule of lenity but one purpose of the MPC is to give
fair warning of the nature of the conduct declared to constitute an offense.

II. Constitutional Limits:

A. 5th Amendment
i. Rights related to criminal proceedings – guarantees the right to a grand jury, forbids
“double jeopardy,” and protects against self-incrimination.
B. 6th Amendment
i. Rights related to criminal prosecutions – right to a public trial without unnecessary delay,
the right to a lawyer, the right to an impartial jury, and the right to know who your accusers
are and the nature of the charges and evidence against you.
th
C. 8 Amendment
i. Cruel and unusual punishment and prohibition of grossly disproportional punishment
a. Example: death penalty is disproportional to the crime of rape because no life was
taken
th
D. 14 Amendment
i. Basic fairness and due process
ii. Fairness in the context of criminal statutes is notice
iii. Statutes have to be sufficiently clear so that a person of ordinary intelligence can
understand its meaning

3. Criminal Justice Process

I. Stages of the Criminal Process
A. Criminal Complaint and Investigation:
i. Process usually begins with a criminal complaint sworn by a victim in a case and a decision
to go forward or not; government can start the procedure
ii. Investigation will be conducted by the appropriate agencies
B. Arrest
i. If police go to suspect’s home to arrest = 4th amendment requires an arrest warrant (unless
exigent circumstances present)
ii. Outside of the home = police might arrest on his own authority if he personally witnesses
the crime or if the officer reasonably believes, based on investigation, that the suspect
committed the crime.
a. Standard for arrest = Must have probable cause
b. Convict someone at a criminal trial = beyond a reasonable doubt
c. Convict someone at a civil trial = a preponderance of the evidence
iii. Once in police custody, police must issue the Miranda warnings and advise the suspect of
his rights; failure to do so could later trigger the exclusionary rule at trial.
iv. Has to be an arraignment and cannot be kept longer than 48 hours.
C. Indictment and Preliminary Hearings
i. Two Types of Pre-Trial Mechanisms:
a. Preliminary Hearings: usually public, adversarial proceedings between a prosecutor
and a defense attorney; the prosecutor has the burden to demonstrate to the judge
2
 that there is a sufficient factual basis to justify the charge and proceed to trial. (not
“ex parte”)
b. Grand Jury Proceedings: non-adversarial and involve only a prosecutor presenting
his or her side of the case to a grand jury in a closed-door and confidential
proceeding. (are “ex parte”)
D. Trial
i. Before trial,
a. Prosecutors are required to meet the demands of discovery
b. Plea Bargain: Defense and prosecution may make informal predictions of the
outcome and then may negotiate a plea bargain
ii. Voir Dire:
a. Selection of the jury; each side may strike potential jurors with a limited number of
peremptory challenges and an unlimited number of challenges for cause when there
is evidence that a juror cannot be impartial.
b. Sometimes can have a trial before a judge instead – bench trial.
iii. Jury Instructions:
a. Instructions are given to a jury by the judge
b. Written by either the prosecution or the defense – if one party’s instructions are not
accepted and court goes with other side, that party can object
iv. Prosecutors have to turn over evidence to the defense to avoid unfair surprises and the
parties can make a plea bargain.
v. Prosecutor bears the initial burden to establish a prima facie case (evidence that is legally
sufficient to demonstrate that the ∆’s behavior satisfied each element of the criminal
offense, unless that evidence is disproved or rebutted by the defense)
vi. If prosecution fails to meet the prima facie case, the judge can grant dismissal if she
determines that it would unreasonable for any jury to convict (otherwise, ∆ goes ahead with
their arguments)
E. Sentencing
i. In most cases, sentencing occurs in a separate proceeding that allows the judge or jury to
consider aggravating and mitigating circumstances that would not be relevant during the
guilt phase of the trial.
F. Appeal
i. After sentencing, ∆s are permitted to appeal their conviction unless they have knowingly
waived their right to appeal as part of a plea bargain.
a. Prosecution cannot appeal – double jeopardy
ii. Grounds of appeal by the defense are limited to questions of law, as opposed to the jury’s
assessment of fact
a. Most appeals are because of jury instructions; review is a standard of law, so
reviewed de novo.

II. Presumption of Innocence

A. Proof beyond a reasonable doubt (evidentiary standard) and the presumption of innocence
B. Defining “innocent until proven guilty”
i. Burden of proof is with the prosecutor
ii. Burden of production and burden of persuasion
a. Production = showing that there is a case by introducing some sort of evidence
b. Persuasion = showing that the person is guilty; burden of swaying the decision by
meeting the relevant standard of proof
3
 iii. Preponderance of evidence - “fifty percent and a feather,” meaning more likely than not
iv. No numerical standard for beyond a reasonable doubt

III. Evidentiary Standards

A. Owens v. State
i. Direct evidence – evidence that you derive from your own senses; evidence that people can
testify from their own experience.
ii. Circumstantial evidence – evidence not drawn from direct observation; could be false or
correct; evidence that you can make an inference from.
a. CAN convict on circumstantial evidence but still have to meet the burden of proof
beyond a reasonable doubt (even for capital crimes)
b. When only circumstantial evidence, standard is “unless the circumstances are
inconsistent with any reasonable hypothesis of innocence.”

IV. Jury Nullification

A. Defined: where the jury refuses to return a guilty verdict, even in cases where evidence of guilt
is sufficient to meet the legal standard of proof.

4. Reading a Criminal Statute

I. Ways to Interpret the Statute:
A. Textualist: looks at the ordinary meaning of the statute
i. What courts look at today, but if there is conflict, might refer to either purposivism or
intentionalism
ii. Otherwise known as the “plain meaning rule”
B. Purposivism: the overall purpose of the statute; what is it trying to accomplish?
i. Objective
C. Classical Intentionalism: why the draft statute was first introduced; the nature or tenor of the
legislative debate; the reasons for any amendments to the bill; the reasons that various
legislators had for their decisions to vote in favor of the bill.
i. Looking at the legislative history to find the legislator’s intent
ii. Subjective

II. Common Law

A. Common law crimes = judge-made law or case law
B. Henry II was the founder
C. Common law was vague so started enumerating them into statutes – but also included savings
clauses.
D. Common law is problematic because most people don’t know about them.
i. If don’t know about old English common law or know how to access them or read them,
won’t know to conform their behavior to it.
E. Several meanings of common law
i. Refers to law dating from the time of Henry II
a. E.g., murder, mayhem, rape, robbery, larceny, battery, burglary, buggery
b. In 18th century, crimes from England were being implemented in statutes and all
states (and the feds) have criminal statutes now
ii. Also refers to case law interpreting statutes/penal codes
iii. Crimes referred to by statutes (Michigan outlawing all acts criminal in England at the time of
the Revolution)
4
 a. Statutes incorporate open-ended provisions that were known by the judges and
written down
b. When talking about common law crimes, the crimes developed by the judges and
sometimes the crimes that were incorporated via statute
c. American criminal law is, by and large, statutory because English common law
crimes have been codified

III. Model Penal Code

A. Explained: Very specialized approach to penal codes created by the American Law Institute –
tells you how to break down a statute into residual parts (conduct and result (called the “act”),
mental state and attendant circumstances)
B. No jurisdiction has adopted the MPC in its entirety – many jurisdictions have adopted parts of
it.
C. Important MPC Sections:
i. 1.13 – general definitions
ii. 2.01 – requirement of voluntary act; omissions as a basis of liability; possession as an act
iii. 2.02 – general requirements of culpability (mental states)
iv. 2.03 – causal relationship between conduct and result; divergence between result designed
or contemplated and actual result or between probable and actual result
v. 210.1 – criminal homicide
vi. 210.2 – murder
vii. 210.3 – manslaughter
viii. 210.4 – negligence homicide
D. Reading a Penal Statute:
i. Material elements: pieces of the crime (each must be proven beyond a reasonable doubt)
ii. Identify the conduct, result and attendant circumstances and then attach the mental state
(must connect the mental state and the conduct)
iii. Intent
a. Purposely: you mean for the outcome to result
b. Knowingly: you know the outcome will result
c. Recklessly: you should be aware the outcome will result but chose to ignore it
d. Negligently: you disregard the fact that the outcome will result
§ Mens rea applies to all material elements unless there there is a contrary
purpose (could be structural (just doesn’t make sense) or grammatical)
§ If no mens rea is specified, reckless and above apply (knowledge and
purpose)
§ If crime says you’re negligent, then also guilty of reckless, knowledge,
purpose
à Reckless, then also knowledge and purpose
à Knowledge, then also purpose
iv. Conduct
a. Look for the verbs
§ Then you know if there is a result required or just conduct
b. ∆ needs to engage in the prohibited conduct to be guilty
c. Conduct needs to be causally connected to a particular result (like causing injury to
another person)
v. Attendant circumstances
a. Something that needs to exist outside of the mental state, conduct.
5
 b. Example: weapon or instrument must qualify as “deadly” or “dangerous”

IV. REVIEW: Criminal Law Provision – Material Elements

A. Material Elements
i. (1) Conduct (actus reus) [there must be some prohibited action; look for the verbs because
verbs are action words]
ii. (2) Mental State (mens rea) [most criminal law is intentional]
iii. (3) Results [conduct v. result crimes]
a. Conduct crimes have no result; the conduct is what is prohibited
§ Example: drinking and driving
b. Result crimes must have a result; the result is what is prohibited
§ Example: homicide
iv. (4) Causation (a link between the defendant’s conduct and the results)
v. (5) Attendant Circumstances [a feature of the statute that has to be there for all elements
to be met]

5. Act Requirements
I. Actus Reus
A. Defined: an offense is the physical, or external, component of the crime that society does not
want to occur

II. Culpable mental states need action but most criminal statutes are silent on what constitutes an act
A. But, an act is usually considered CONDUCT and RESULT
i. This requires a voluntary physical requirement
ii. Conduct crime: some crimes prohibit specific conduct whether or not tangible harm results
(example would be drunk driving)
iii. Result crime: some crimes prohibit specific results, such as a death of another human being

III. Attendant circumstance

A. A result or conduct is not an offense unless certain “attendant circumstances” exist.
B. An attendant circumstance is a fact that exists at the time of the actor’s conduct or at the time
of a particular result, which is required to be proven in the definition of the offense

IV. Voluntary Act

A. An “act” committed while one is unconscious is no act at all; it is a physical event for which
there can be no criminal liability.
B. Physical acts produced by automatism (during a state of unconsciousness) are not usually
subject to criminal punishment.
i. State v. Utter
a. Utter was drunk and a veteran of WWII
b. When the state of unconsciousness is voluntarily induced through the use and
consumption of alcohol or drugs, then that state of unconsciousness does not attain
the stature of a complete defense.

V. Omissions
A. Defined: failure to act or the absence of an act
B. Conviction can be based on an omission only when the ∆ had a legal duty to act, which can be
established by:
6
 i. Statute
a. Example: a statute might impose an affirmative obligation on all individuals to pay
taxes, with criminal penalties for non-compliance
ii. Relationship Between ∆ and Victim
a. Example: parent/child relationship
iii. Contract/Legal Duty
a. Example: contract to care
b. Commonwealth v. Pestinikas: ∆s omission to act satisfied the physical act because
they had to duty to Kly that was imposed via the contract.
iv. Voluntary Assumption of Care
a. Example: lifeguards have duty to swimmers; doctors have duty to patients
v. Creation of Risk
a. Example: someone who causes harm has duty to mitigate the harm (intentionally or
negligently)
C. As a general rule, omissions are never criminalized.

VI. Bystander
A. If a bystander witnesses a crime, she has no general legal obligation to intervene to stop the
crime, unless she bears a legal duty to act under one of the categories described above.
B. Bystanders can be prosecuted if they encouraged, incited, or assisted the crime in some way
that transformed them from “mere” bystanders into actual accomplices or conspirators.

6. Mental States
I. Mens Rea
A. The particular mental state that accompanied the defendant’s actions
B. Provide a scheme for distinguishing between levels of culpability

II. Four Mental States:

A. Purposely: ∆ means for an outcome to occur
B. Knowingly: ∆ doesn’t necessarily mean for an outcome to occur, but knows that it probably
will occur.
i. Involves the ∆’s awareness of the possibility that his or his behavior will cause a
prohibited result.
C. Recklessly: involves the ∆’s awareness of the possibility that his or his behavior will cause a
prohibited result.
i. Standard is subjective; not a knowledge of material elements, but a risk
D. Negligently: doesn’t matter if you thought it was okay at the time- reasonable person
standard; what would a reasonable person have done?
i. Standard is objective because it applies to everyone; everyone is a reasonable person

III. Common Law v. MPC

A. Common Law
i. (1) Conscious object to cause the result and (2) knew the result was practically certain to
occur
a. In the MPC, this is divided into purposefully and knowingly
ii. Knowingly
iii. Recklessly and Negligently
7
 B. MPC
i. Requires proof of a mens rea
a. Need for proof of a mens rea (purposefully, knowingly, recklessly, negligently) for
each element of the crime
b. With the MPC, EACH element should be “covered”
c. If the statute is silent regarding a mens rea regarding one or more of the actus reus
elements, the code provides that such element is established if a person acts
purposefully, knowingly, or recklessly.
ii. Acting purposefully
a. MPC removed the ambiguity of “intent” and provided purposefully and knowingly
mental states
b. A person acts purposefully when it is their conscious object to cause the result or
engage in conduct of that nature
c. P and K include intentional, malice, and willful
iii. Acting knowingly
a. Willful blindness – ∆s can still be convicted for acting knowingly
§ Not knowing qualifies as knowing when there’s deliberate ignorance – willful
blindness (United States v. Jewell)
§ Knowledge can be direct or circumstantial
b. Knowledge under the MPC means being practically certain and the person is aware
of his or her conduct
§ ∆ just needs a high probability that he is aware of something
c. A person acts knowingly as to an attendant circumstance if he is aware that the
circumstance exists or he is aware of a high probability of its existence unless he
actually believes it does not exist (the latter here returns to willful blindness)
iv. Recklessness
a. Conscious disregard of a substantial and unjustifiable risk
§ This language comes from the MPC but can also be found in the statute
b. Similar to negligence but the key difference is that ∆ is aware of the risk
v. Negligence
a. When a ∆ should be aware of a substantial and unjustifiable risk
b. Critical difference between negligence and recklessness is that, with negligence, the
actor is NOT aware of the risk but SHOULD be

IV. Malice
A. Acting with a “wicked” motive or with an “evil” intent

V. Strict Liability
A. Defined: The ∆ is responsible simply for committing a particular action or causing a particular
result, regardless of their state of mind.
B. Most often found in regulatory offenses that have a public welfare rationale
C. Can be controversial since the ∆’s awareness of the situation
D. Conflicts with:
i. A need for deterrence and retribution
E. Under 2.02, the mental states that apply are purposefully, knowingly, recklessly but when
there is no mental state/statute is silent, SL can be read into it but is usually disfavored.
i. Guns/registering is an exception

8
 ii. Public welfare / regulatory exception – there are some things that are so bad or
dangerous that congress can regulate them without a mens rea
a. Grenades, narcotics
b. Usually incredibly dangerous activities
iii. A non-public welfare offense could be considered a SL offense but this is rare. Example
would be statutory rape.
F. Mistake of Fact defense is not available because no mens rea is required
G. CANNOT attempt a SL result crime; CAN attempt a SL conduct crime

VI. General v. Specific Intent (THIS IS COMMON LAW)

A. General Intent: a crime in which there is one action and one intent that goes with it
i. Intend physical movement constituting actus reus
ii. Example: assault/battery, breaking and entering, rape, drunk driving, homicide
B. Specific Intent: often has two level of mens rea
i. In a specific intent offense, it will explicitly contain one of the following mens rea
elements in its definition:
a. (1) The intent to commit some act over and beyond the actus reus of the offense;
b. (2) A special motive for committing the actus reus of the offense; or
c. (3) Awareness of a particular attendant circumstance
ii. Example: possession with intent to distribute, larceny, burglary, robbery, forgery, false
pretenses, embezzlement
a. Burglary with intent to commit felony therein; you commit burglary and also a
felony.
§ Breaking and entering (<-- general intent) with intent to commit felony therein
(<-- this in specific intent)
o General intent is a conduct alone of the special intent
o All specific intents have general intents

VII. Transferred Intent

A. 2 ways of looking at this doctrine:
i. (1) If you intend to hurt one person but end up hurting another – juvenile and incorrect
way of looking at it according to prof.
ii. (2) If you intend to cause the death of person, but end up causing the death of someone
else. That doesn’t matter, you intended to kill a person, is not specific as to who you
intended to kill.
B. Common Law: punished for additional harm to unintended victim
i. Example: ∆s attempt to harm X transfers to mother (unintended victim), which then
transfers to the fetus
C. MPC: ∆ is not automatically subject to an increased penalty for additional harm he causes.
Trier of fact must also consider whether the harm is too remote or accidental to have a just
bearing on the actor’s liability or gravity of his offense.
i. ∆ is only responsible for the mother if the injury to the fetus was too remote to have
a just bearing on his liability

7. Mistakes
I. Defined:
A. A mistake is relevant if it negates a required mental element of the offense

9
 B. Burden of persuasion falls to the prosecution to establish, beyond a reasonable doubt, that the
∆ acted with the required mens rea, that it was not a mistake
i. As an elemental approach, no burden shifting. Nothing specific you have to prove;
prosecution just has to establish what mental state. For example, theft requires knowledge
that it property of another.
ii. Under common law, specific intent- prosecution just has to show the ∆ they did not have a
sincere belief. For larceny, prosecution just has to show ∆ knew it was someone else’s
property.
iii. Some states view mistake as an affirmative defense; the burden would then be on the
defendant.
iv. Usually, burden is always on prosecution.

II. Mistake of Fact

A. Committed the conduct which may have led to the prohibited result, but failed to do it with the
requisite mens rea
i. Inadequate mens rea is key!
ii. Guilty of the act under the mental state you had
B. State v. Sexton: If you have a good faith belief that the gun was not loaded, but it was still
recklessly formed, would still be guilty. ∆ does not have to prove there was a mistake, but
prosecution has burden to prove every element of the crime.
C. Mens rea- look at lowest one and go with that because that’s the easier way you can convict
D. COMMON LAW Approach – General/Specific Intent
i. General Intent Crime: a reasonable mistake (a mistake that a reasonable person would
make in that position)
a. requires the mistake be reasonable before allowing the defense
b. Reasonable mistake equivalent in MPC = negligence
§ Standard in negligence: reasonable person
c. Example: Act of taking the tumbler (general intent crime)
§ If I thought she gave me her tumbler, that it was actually an offer, it would not
be reasonable. If it was common practice, then possibly reasonable.
ii. Specific Intent: a good faith mistake
a. whether the mistake negates a required mental element of the offense (the part
of the offense that requires a specific intent)
b. Good faith mistake equivalent in MPC = knowledge/purposely
§ Example: I actually have to believe that person is a bear instead of a person
E. MPC/Elemental Approach
i. a mistake of fact is a defense if and only if it negates the required mental element of the
offense: “purpose, knowledge, belief, recklessness or negligence.”
ii. Guilty of the crime you actually committed
iii. Elemental approach:
a. Look at the statute
b. What was required?
c. Under the mistaken belief, did he meet the elements?
iv. Purposely and Knowledge = good faith mistake
v. Reckless = “honestly not aware of the risk”
vi. Negligence = reasonable mistake / reasonable person in ∆’s position would have also made
that mistake
F. Moral Wrong Test
10
 i. idea was that if what you thought you did was morally wrong, then you’re guilty for what
you actually did.
a. Example: a man abducts a 14 year old girl thinking she’s 18. Court said no still
guilty because it’s immoral to take a girl and marry her without asking her father
first. Still a few states that apply this.
G. Legal Wrong Test
i. idea was that if what you thought you did was legally wrong, then you’re guilty for what you
actually did.
a. Example: larceny and money laundering. A person thinks they’re committing
larceny, but are acting laundering money. Guilty for what you’re actually doing.

The Model Penal Code takes a more lenient view of mistake of fact defenses in those situations in
which the defendant intended to commit an offense, but ended up committing a worse offense
than the one she intended. Unlike the common law approach, the defendant is only punished at
the level of the intended offense

III. Mistake of Law

A. MOL is relevant if the mistake negates a required mental element of the offense or (in some
jurisdictions) if the ∆ relied on an official interpretation of the law.
B. Old common law rule was that ignorance of the law was no excuse.
C. Modern Day/MPC: recognizes that legal mistakes might be relevant if knowledge or awareness
of the law is a material element of the offense.
D. MOL may be accepted if there is reasonable reliance:
i. ∆ relied on an official statement of the law that is later determined to be erroneous or
invalid [2.04(3)(b)]
ii. A ∆ could argue MOL based on the fact that the law or statute was secret or not published
[2.04(3)(a)]

8. Causation
I. Two-step process for evaluating causation in criminal law:
A. (1) Establish whether there is any causal connection
B. (2) Ask whether the connection is sufficiently close to hold the ∆ responsible for the resulting
harm.

II. But-For Causation (cause in fact)

A. Cause in Fact Test: “but-for” causation – whether the result would have occurred but for the ∆’s
actions
B. Substantial Factor Test: courts ask whether the ∆’s actions were a substantial factor in
producing the result, regardless of whether the event might have occurred anyway.
C. Acceleration theory: court asks whether the ∆’s actions accelerated or hastened the result.
D. BF Causes/SF:
i. Independently kills immediately = BF cause
ii. Independently kills after X hours = BF cause
iii. Cause 1 independently kills after X hours; Cause 2 does not kill independently, but
accelerates death = both BF causes
iv. Cause 1 independently kills after X hours; Cause 2 does not independently kill and does not
accelerate = Cause 1 is BF cause; Cause 2 is not
11
 v. Cause 1 and 2 do not kill independently, but jointly kill after X hours = both accelerators; BF
causes if victim dies at any time < X
vi. Cause 1 and 2 independently kill immediately = both SF
vii. Cause 1 and 2 do not kill independently, but jointly kill after X hours = if victim dies in X
hours, no BF, SF
E. Issues with Causation:
i. In situations whether it is unclear who committed the murder because there are multiple
actors, prosecution will typically go for accomplice liability, sometimes under community of
purpose.
ii. If causation is an issue because two ppl are guilty (it’s over-determined) then they will go
for substantial factor
a. can’t show causation for either so can’t charge them for the crime itself, but can
still be accomplices. Community of interests analysis is how courts get around the
mens rea requirement.

III. Breaking the Causal Chain

A. Abnormal intervention: unforeseeable and therefore breaks the chain of causation
i. Objective analysis
ii. Would a reasonable person foresee the intervention occurring? If yes, then the original
actor is still responsible for the results that occur after the intervention
B. Responding Cause: if the second intervening agent is responding to the situation caused by the
first actor, the causal chain is not broken and the first actor is still responsible
C. Coincidental Cause: breaks the causal chain and the first actor will not be responsible

IV. Proximate Cause

A. Proximate cause relies on foreseeability
B. Common Law = Rule of proximate cause is year and a day, but this had been abandoned in
many states
C. Some courts will look at whether the intervention was normal or abnormal (meaning it was
foreseeable and breaks the causal chain)
D. Response or coincidence
i. If a coincidence, see whether it was abnormal
a. Could be a break in the causal chain and the first actor is not responsible
b. If abnormal, then no proximate cause
c. If not abnormal, then proximate cause
i. If a response, have to determine whether it was foreseeable
a. If a second intervening agent is responding to the situation caused by the first actor, the
causal chain is not broken
b. If the response is foreseeable, then causal chain is not cut and there is proximate cause
c. If not foreseeable, then no proximate cause
E. “Apparent safety” doctrine – leaving a position of safety can break the causal chain
F. MPC asks if the result is not too remote or accidental in its occurrence to have a just bearing on
the actor’s liability or on the gravity of his offense

OFFENSES
1. Murder with Malice Aforethought

12
 I. Express v. Implied Malice
A. Express Malice: intentional killing – an unlawful killing in which the actor desired the death of
the victim.
i. Under old common law, extreme bodily harm was express malice
B. Implied Malice: involves reckless killings that demonstrate a depraved indifference to human
life
i. Under old common law included felony murder
C. MPC does not use the concept of malice
i. § 210.12: defines intentional murder as a killing performed purposely or knowingly, and
makes no attempt to distinguish between more or less blameworthy types of intentional
murder
*second degree, test is extreme indifference to human life

2. Voluntary Manslaughter
I. Manslaughter defined (Castagna) – homicide, which would otherwise be murder, is committed in the
heat of passion resulting from a reasonable provocation
A. Required mental state is intentional

II. Is basically intentional murder with the existence of certain mitigating circumstances
A. Common Law Approach (adequate provocation)
i. Older, specified circumstances (Girouard)
a. (1) Extreme assault on the ∆
b. (2) Mutual combat
c. (3) Illegal assert of the ∆
d. (4) Injury of serious abuse of close relative (or friend)
e. (5) Sudden discovery of spouse
ii. if someone punches you and you kill him in return, that’s voluntary manslaughter. An
intentional murder for which there’s a special excuse – extreme assault
B. Generalized Common Law Conditions
i. (1) Adequate provocation – defined as calculated to inflame a reasonable man and to cause him
to act through passion rather than reason
a. Words are not enough
§ Lang court: words can constitute adequate provocation if they are accompanied by
conduct indicating a present intention and ability to cause the defendant bodily
harm
b. Threats depend on the context
c. Pets are not adequate provocation (has to be friend or relative) but can also be a
question for the jury
d. In Morales, court said the learning of assault could be enough to constitute provocation,
but what matters is that the D lost control immediately upon learning
ii. (2) Killing in the heat of passion.

13
 iii. (3) Performed suddenly before reasonable opportunity for passions to cool
a. Exceptions: doctrines of rekindling and long-smoldering passions
iv. (4) Causal connection between provocation, passion, and killing
C. MPC (extreme emotional distress)
i. A broader standard: killing is manslaughter when it is committed under the influence of
extreme emotional disturbance for which there is reasonable explanation or excuse.
ii. it is an affirmative defense
iii. No heat of passion/cooling off period.
iv. MPC: 210.1(b)

3. Reckless Killings
I. Involuntary Manslaughter
A. Defined: an unintentional killing based on the defendant’s unjustified risk-taking behavior.
(aware of and disregarding a substantial and unjustifiable risk)
i. Required mental state is recklessness
ii. MPC § 2.02(2)- disregarding the risk “involves a gross deviation from the standard of
conduct that a law-abiding person would observe in the actor’s situation.
a. MPC does not have a separate category for involuntary manslaughter; all reckless
killings are manslaughter
B. Implied malice (common law) and extreme indifference murder (MPC)
C. The crime of involuntary manslaughter requires (1) that the defendant's gross negligence result
in the accidental death of another (or, under the Model Penal Code, that the defendant act
recklessly) or (2) that the death occur unintentionally during the commission of a misdemeanor
or other unlawful act.
i. necessary for the prosecution to show that the defendant's actions were the proximate
cause of the victim's death.

II. Implied malice killing – some courts refer to reckless murder as implied malice murder (malice
aforethought)
A. Extreme indifference to the value of human life
B. Basically: the ∆’s depravity can be shown as severe or through an “abandoned or malignant
heart”
C. Implied malice killings and extreme indifference murder are synonymous and face-dependent

III. Involuntary manslaughter is not murder, but implied malice is murder

A. Misdemeanor manslaughter
i. Committing an underlying misdemeanor but someone dies
ii. No mens rea required
iii. ∆’s recklessness is presumed by the state on account of the ∆’s commission of the
misdemeanor but there must be proof of the proximate cause/causal link
iv. Going out of favor because it goes against the idea that you go to prison for what you
actually intend, which would be the elemental approach and judges like that
a. Also gives prosecutors a “short cut” to manslaughter charge
b. State must prove there was a mens rea on the part of the ∆
v. Malum prohibitum – An act that is a crime merely because it is prohibited by statute,
although the act itself is not necessarily immoral.
a. Example would be jay walking
b. Bad because it is bad as defined in the statute
14
 vi. Malum in se – wrong or evil in of itself

IV. Felony Murder

A. Defined: Someone is guilty of felony murder simply because he committed a triggering felony
that resulted in death.
i. No mens rea required.
ii. Triggering felonies differ from state to state, but common ones include arson, burglary,
rape, and robbery
v In order to convict ∆ of FM – merger rule and inherently dangerous limitations MUST BE MET
B. Merger Rule:
i. the requirement that the felony that forms the basis of a felony murder conviction be
independent of the killing – the felony cannot merely be the means by which the ∆ killed
ii. Triggering felony + resulting killing = felony murder
a. Robbery + death = FM
b. Negligent vehicular homicide felony + death
§ Negligent homicide = 3-10 years
§ FM, depending on jurisdiction = 25-life
iii. If the felony is somehow related to the murder, then it merges.
a. If independent felonious purpose à no merger à FM
b. If no IFP à merger à no FM
§ Second degree murder does not have an independent felonious purpose –
have to draw the line somewhere, if not, every killing would be a murder
§ All homicides are felonies
iv. Felony has to be sufficiently different from the act of murder
a. Where to draw the line is difficult
§ Example: child abuse
§ Armed robbery is sufficiently different
§ CA says that any crime that is assaultive in nature cannot be felony murder –
charged for that crime and not felony murder
o Sarun Chun: “when the underlying felony is assultative in nature, the felony
merges with the homicide and cannot be the basis of a felony murder
instruction.”
C. Inherently Dangerous Felony Limitations (must be satisfied for ∆ to be convicted of FM):
i. (1) The triggering felony must be “inherently dangerous” to human life
a. Two Approaches:
§ Abstract: look at the text, does it, on its face, seem inherently dangerous?
o Look at the statute to see if felony is inherently dangerous
§ As Applied: look at all the facts and decide whether it was inherently dangerous
o In the way he did it, was it inherently dangerous?
ii. (2) The killing cannot be too remote from the triggering felony
iii. (3) The killing must be performed “in furtherance of” or “in perpetration of” the felony
a. Has to be some type of relationship between the act, the felony, and the death.
§ Proximate Cause: The death has be a proximate cause, or
o Question is whether the person’s actions is a proximate cause of the
death?
o Allows prosecutors to charge ∆ for felony murder for killings performed
by police officers

15
 § if the killing committed by a non-felon is the result of a sequence of
events set forth by the defendant, the defendant is ultimately
responsible. Therefore, the killing by a non-felon should be
attributable to the felon and should serve as the basis of a felony-
murder charge.
§ Agency Test: Performed by ∆’s agent
o Provocative act doctrine: To hold the felons guilty of murder for deaths
caused at the hands of third parties, prosecutors have to show malice by
using the provocative act doctrine.
o ∆ starts shooting at police, police shoot and kill an innocent person on
accident - Provocative acts of one felon create malice for all co-felons
o Police killings normally do not count
b. Question is whether someone on your side is the one who is committing the act?
D. MPC Approach
i. MPC does/not have felony murder
ii. MPC 210.2(1)(b) – does not explicitly state felony murder but lists felonies and if a ∆
commits one of these felonies then recklessness is presumed and ∆ can be convicted under
this statute
iii. MPC creates a statutory presumption that a killing performed during a felony constitutes
murder under the category of extreme indifference to human life
a. Instead of requiring a jury to find that the ∆’s behavior rose to a level of indifference,
a court may simply presume that the required indifference is satisfied since the
killing occurred during the course of a felony

4. Negligent Homicide
I. Requires only negligence
A. No state of awareness is required
B. ∆ is punished for his carelessness essentially
C. Negligence requires a deviation from the standard of care that a reasonably prudent person
would follow under the circumstances
D. MPC only classifies negligent deaths as negligent homicide.

II. Ordinary Negligence:

A. Defined: exercise ordinary care
B. A fact finder must assess whether an individual’s deviation from the standard of care is
sufficient to generate a negligent homicide conviction

III. Gross Negligence:

A. Defined: gross deviation from the standard of care that a reasonable prudent person would
observe under the circumstances
B. State v. Small: negligent homicide does not require a direct act of killing by the ∆.
i. The fire was directly linked to the ∆’s negligent conduct and the victim’s death was a direct
consequence of the negligence
ii. Court applied the agency approach of the in furtherance (When you have a crime of
negligence, actor is the agent)

IV. Analysis
A. If the negligence created an emergency, then ∆ is responsible
16
 B. However, must look at whether something was a mere accidence (Traughber)
i. If ∆ responded to emergency, then “reasonableness” is a lower bar
C. Negligent behavior often involves not doing something that a person should be doing

5. Rape
I. Rape = sexual intercourse + (force OR threat of force) + no consent
A. general intent crime because you intend to have sex – have to intend the act

II. Consent:
A. At common law, victim was resistant to their utmost
i. Part of rape reform was to remove consent to focus on force
ii. Heavy focus on consent was a disincentive for victims to come forward because defense
would focus on history of sexual relations to prove consent– victim would get on the stand
and their sexual history would be out there for everyone to know
a. Rape shield law: ∆ is barred from bringing evidence concerning the woman’s past
sexual history that does not involve him
B. Modern Focus is on Force
i. Attention put on the aggressor
ii. Victim is not required to actively resist if she reasonably believes resistance would be
useless and would result in serious bodily injury
iii. What does force mean?
a. Resistance is defined as reasonable under the circumstances and does not have to be
strictly physical and because resistance does not have to be just physical; verbal means
lack of consent
b. Extrinsic vs. intrinsic
b. Extrinsic – force beyond the actual act itself
o State v. Jones is an example
• Case where the ∆ and victim had been having an affair for a while and
she wanted to end it but he raped her twice after the affair had
ended
• Scale berkowitz/jacques
o Ordinarily required proof of force or threat of force beyond the inherent act
of non-consensual intercourse
c. Intrinsic – penetration; the force is equal to the act itself
o Lack of consent + force inherent in sexual intercourse
o Move toward modern trend of eradicating element of force
C. Consent and Mistake of Fact
i. Traditionally, lack of consent was not an issue because if there was force, then of course
there was no consent. But if limited force is required, then question of whether ∆ knew there
was consent. (mistake of fact)
ii. How does consent become an issue?
a. If simply defined as intrinsic, then issue of consent becomes more important
iii. If ∆ was mistaken about consent, to analyze whether that claim is legally cognizable, look at
mens rea requirement for consent
a. Negligent = reasonable person
b. Knowledge = good faith
c. Common law rule, knowledge of consent is not part of the crime, but part of the
force of the act, so it would be a strict liability = no mental state requirement
17
 iv. People v. Lopez: ∆ claims rape was consensual and wanted a MOF instruction; consent is
contained in force determination so court said no
v. People v. Newton: what matters is not whether the ∆ was subjectively aware that the
victim was consenting, but whether a reasonable person in the actor’s situation would be
aware that the victim was not consenting (reasonable person test – objective test) (views
rape as more of a special intent crime)

III. Threat of Force

A. Threat of force + unconsented sexual intercourse = rape
B. Whether threat is sufficient for question of fact for the jury
C. BLL: “whether threat was sufficient to put the victim into a reasonable apprehension of
violence”
D. MPC’s gross sexual imposition: defined as sexual intercourse by a perpetrator who compels the
victim to submit by any threat that would prevent resistance by a woman of ordinary resolution

IV. Rape By Fraud

A. Fraud in the Inducement (not really rape)
i. Boro: victim was tricked into having sex with a fake doctor
ii. “have sex with me and I will make you into a great lady” not made into a great lady
B. Fraud in Fact (rape)
i. Does not realize it is rape
ii. If deception causes a misunderstanding as to the fact itself, there is no legally-recognized
consent because what happened is not that for which consent was given
iii. Dr. Nassar

V. Statutory Rape / Rape by Capacity

A. Those of certain ages or mental capacities can never consent and ∆ can be convicted because
the victim is legally incapable of consenting
B. Cannot consent in conditions such as drunkenness and unconsciousness
C. Also seen in complex power dynamics such as student and teacher or doctor and patient
D. Romeo and Juliet laws
i. People within a certain age range can legally have sex (a pair who are 15 and 16, for
example)

Offenses Against the Person

1. Battery
I. Common law:
A. Battery required some physical contact, however slight
B. Assault was defined as an attempted battery (no physical contact required)

II. 3 major elements (the act and mental state requirements combined with a result element)
A. Engage in an unlawful application of physical force
B. Resulting in either a physical (bodily) injury or an offensive touching
C. Acting with purpose, knowledge, or recklessness (or negligence under a few statues) to cause
the prohibited result
i. *content of the elements varies across jurisdictions

2. Assault
18
 I. MPC:
A. Eliminated the distinction between assault and battery –
i. Assault covers physical contact, attempted physical contact, reasonable apprehension of
bodily injury

II. Two avenues that can lead to an assault conviction:

A. Attempted battery
i. Meaning that mere attempt is acceptable and there is no requirement for injury
ii. Act and mental state requirements remain the same as physical battery; only difference is
the result requirement (no result required)
B. Involves placing the victim in a reasonable apprehension of bodily harm
i. MPC described this as the attempt “by physical menace to put another in fear of imminent
serious bodily injury”
ii. Vague or distant threats usually do not qualify
iii. In most jurisdictions, the mental state for this form of the assault offense is the intent to
cause the required apprehension in the victim
C. Mental State: Have to act purposefully or knowingly to cause a reasonable apprehension of
bodily harm
i. If the person is genuinely unaware that the victim would be put in fear, then the
perpetrator has not committed assault
a. Some jurisdictions look for the mental state to be the purpose to commit
b. Elemental approach of MOF – have to have knowledge and if you don’t have
knowledge then you don’t satisfy the element of the crime
ii. Some subjective component (State v. Birthmark)
a. whether a reasonable person under the similar circumstances as the victim would
have as a reasonable apprehension of bodily injury
b. The only mental state required to convict is that the ∆ have a “conscious object to
engage in the conduct” or that he be “aware of his actions”

3. Kidnapping
I. Defined: Confinement of victim or restriction of movement
A. The Three Basic Requirements Include:
i. (1) Confining or carrying away the victim
a. Technical name for carrying away is asportation
b. 4 elements for asportation (in Garcia) in Goolsby:
§ (1) Duration of the movement;
§ (2) Whether the movement occurred during the commission of a separate
offense;
§ (3) Whether such movement was an inherent part of that separate offense; and
§ (4) Whether the movement itself presented a significant danger to the victim
independent of the danger posed by the separate offense
ii. (2) Forcibly or by threat or fear or deception
iii. (3) For a nefarious purpose
B. Act requirement can be satisfied by “force” but the MPC also includes threat or deception
C. Cannot be incidental to another crime – Some courts say it can’t be done in furtherance of
another crime; prevents double charging

II. Movement:
19
 A. How much movement is needed for kidnapping?
i. Inherent movement part of a separate offense intended to isolate the victim from
protection or rescue
ii. Significant danger independent from the separate offense (rape, for example)
B. Most states see kidnapping as moving around of any kind during the commission of a crime
C. Slight movement can be enough provided you satisfy all 4 elements for asportation (in Garcia)
in Goolsby

III. Mental State:

A. Usually requires intent or purpose
B. Could be many different types of purposes though – MPC says for ransoms or reward, facilitate
commission of a felony, etc.

4. Theft
*in order to complete the offense, actually have to take away the property.
I. Larceny
A. Defined: the trespassory taking and carrying away of another’s property with the intent to
permanently deprive the possessor of the property
i. “trespass” refers to the notion of a legal trespass – a violation of a legal interest by taking
the property without consent or justification
ii. Did you move another’s property and have the intent to permanently keep it?
iii. Pickpocketing falls under the crime of common law larceny, which requires only a
trespassory taking and carrying away of the property of another with intent to steal.
B. 4 Elements:
i. Trespassory taking
a. Possession does not pass
ii. Asportation
iii. Property of another
iv. Intent to deprive permanently
C. Custody versus possession
i. Consent to take something/taking with permission
ii. The idea is that if you have possession, you cannot commit larceny because it is legitimately
your own
iii. If you take it outside of the reason for which you were given permission for, then that turns
into trespassory taking
iv. Basically: custody is with a specific purpose and violation of that specific purpose turns into
larceny

II. Larceny By Trick

A. Defined: “fraudulent” taking and carrying away of another’s property and intent to
permanently deprive
i. When it is given to you, you have an intent to take it forever, thereby essentially steal it
ii. Rent car with intent to take permanently
a. But, if you rent honestly but then change your mind – no fraudulent intention, that’s
embezzlement
B. (1) the property taken by the accused must be converted by him (i.e., it must be destroyed,
sold, or otherwise deprived of its utility to the victim), and (2) title to the stolen property must

20
 not have passed to the accused. Larceny by trick also requires that the property be taken by
fraud or deceit.
C. Four Elements:
i. Taking by ruse
ii. Asportation
iii. Intent to deprive permanently
iv. Property of another

III. Theft by False Pretenses

A. Defined: same as larceny by trick, but requires that the actor receive actual title to the property
(as opposed to mere possession) through the fraud.

IV. Embezzlement
A. Defined: involves an actor’s lawful possession of another’s personal property, which is then
concerted or appropriated by the actor with the intent to prematurely deprive the owner of the
property
B. Two Elements:
i. Property received voluntarily
a. Possession passes
ii. Converted to personal use

V. Extortion
A. Defined: obtaining possession of something by threat or fear and obtaining possession
B. Two Elements:
i. Threat of fear or illegal act
ii. Obtains possession or title
C. Blackmail
i. Two Elements:
a. Threat or fear of legal act
b. Obtains possession or title

VI. MPC Simplification:

A. §223.3 “theft by deception”: covers all situations where the actor “obtains property of another
by deception,” such as creating or reinforcing a false impression “as to law, value, intention, or
other states of mind.”
B. §223.4 classifies extortion as a type of theft – the perpetrator convinces the owner to convert
the property in exchange for the perpetrator promising not to engage in some unlawful act
i. Blackmail is enrolled with extortion
C. MPC has made these a single theft offense with subcategories and the statutes must meet the
four requirements:
i. (1) Physically take and carry away or
ii. (2) Use deception, fraud, or extortion to take
iii. (3) The victim’s property
iv. (4) With the intent to permanently deprive the victim of the property

VII. Robbery
A. Theft + physical force or threat of physical force

21
INCHOATE OFFENSES (inchoate means incomplete)
1. Attempt
I. Why is attempt criminal?
A. Protect society from an about-to-be committed crime
B. Protect society from dangerous people
C. Punish bad actors

II. Defined:
A. Form of inchoate liability
B. Specific Intent Crime: because the ∆ must intend to engage in the conduct and also must intend
to bring about the crime
i. Heightened mens rea requirement is often thought to balance out the lower act
requirement
ii. Majority of jurisdictions require that the ∆ act with purpose
a. mens rea for murder is lower than the required mens rea for attempted murder.
b. if a defendant just wants to scare the victim or play a practical joke, there is no
attempt even if the defendant comes dangerously close to harming the victim.
c. Under the common law, the defendant must have the purpose (specific intent) to
accomplish the crime.
d. Under the Model Penal Code, knowledge of the likely harmful result is sufficient.
C. MPC Approach:
i. § 5.01 – requires the ∆ “purposely engages in conduct that would constitute the crime” and
when causing a result is an element of the crime, also acts with the purpose to bring about
the result
a. MPC imposes attempt liability if (1) the accused intends to commit the substantive
crime itself, and (2) the accused has taken a substantial step toward completion of
the crime. MPC §5.01(1).
§ Under the MPC, “lying in wait” constitutes a substantial step toward
accomplishment of the target crime. MPC §5.01(2)(a).
b. Purpose requirement only applies to conduct; as for other mental elements,
including attendant circumstances, the ∆ only needs to act “with the kind of
culpability otherwise required for commission of the crime.”
c. The MPC substantial step test – requires the ∆ engage in a “substantial step in a
course of conduct planned to culminate in his commission of the crime”
§ Holding in State v. Reeves: when an actor possesses materials to be used in
the commission of the crime, at or near the scene of the crime, and where
the possession of those materials can serve no lawful purpose of the actor
under the circumstances, the jury is entitled to find the actor has taken a
substantial step toward the commission of the crime if such action is strongly
corroborative of the actor’s overall criminal purpose
D. Two kinds of Attempt:
i. (1) Complete: commit act with requisite intent
a. AR for completed is the act
b. If ∆ takes the last step he believed necessary to commit a crime but still fails in his
effort
c. Example: ∆ shoots the victim and missed
ii. (2) Incomplete: commit “substantial step” with requisite act
22
 a. but still more I have to do to carry out intent
b. AR is substantial step
c. If ∆ starts the crime but is caught by the police before he can finish the effort
d. Example: defendant shoots the victim but is tackled before he is able to pull the
trigger
e. Can there be an incomplete attempt a conduct crime?
§ Example- if you’re going to your car drunk and someone stops you – difficult to
prove though
§ Result crimes are easier to show, like attempted murder
E. Requirements for a Punishable Attempt:
i. (1) ∆ has the specific intent or purpose (mens rea) to bring about the crime and
ii. (2) ∆ takes sufficient steps toward committing the crime to satisfy the jurisdiction’s actus
reus test
a. Then two defenses may apply of:
§ (1) Crime is impossible to complete
§ (2) Abandoned the effort
F. Court is Rizzo said that the act of searching for the victim is not enough to constitute a
substantial step under the more traditional “proximity test” used by some courts.

III. Defenses:
A. Impossibility
i. Modern approach is to disallow impossibility defenses unless they are pure legal
impossibility, so don’t worry too much about factual or hybrid impossibility
ii. Two kinds:
a. Factual
§ Occurs when the objective of the ∆ is proscribed by the criminal law but a
circumstance unknown to the actor prevents him from bringing about that
objective
§ Usually not a defense because it simply involves a factual element that
prevented the ∆ from completing the crime
o Example: if the ∆ pulls the trigger but the gun jams, still guilty of
attempted murder even though it was factually impossible to achieve the
desired result
b. Legal
§ Pure Legal Impossibility: covers the trivial circumstances where the ∆ engages in
conduct that he thinks is illegal but is not
o ∆ cannot be convicted of an attempt
§ Hybrid Legal Impossibility: exists if the ∆’s goal was illegal but commission of the
offense was impossible due to a factual mistake by her regarding the legal status
of some factor relevant to her conduct
o Includes both a factual and legal aspect
B. Abandonment
i. This defense applies if the ∆ “voluntarily and completely” renounced his criminal purpose.
ii. Abandonment must be VOLUNTARY
a. Must be truly opposed to a result of resistance from the victim or of fear of
apprehension
b. These limitations substantially limit the number of factual situations that will qualify
as abandonment
23
 c. Not all jurisdictions recognize the defense.
d. common law did not recognize a claim of “abandonment (renunciation)” once a
defendant had passed the point of an attempt

IV. Tests for Determining whether a ∆ can be punished for an attempt:

A. Slight acts test – allows liability if the design of a person to commit the crime is clearly shown
and the actor commits even “slight acts” in furtherance of that design
B. Physical proximity test – where the ∆ must be close in time and space to the final act that
completes the crime
C. The dangerous proximity test – whether the ∆ was dangerously close to consummating the
offenses (proximity here is a causal concept and not a geographic one)
D. Unequivocally test – whether the ∆’s conduct unequivocally demonstrates the ∆’s intent to
commit the crime (an actus reus requirement that loops back and refers to the mental element)
E. The probable distance test – requires that the ∆’s conduct would result in the completed crime
“in the ordinary and natural course of events” if the actor had not been interrupted by a third
party
F. The MPC substantial step test – requires the ∆ engage in a “substantial step in a course of
conduct planned to culminate in his commission of the crime”

V. Difficulties in Recklessness and Negligence

A. Most courts say you cannot intend to be reckless or negligent. Looking for intent to cause the
results.
i. Recklessness does not require a specific intent
ii. Court in Gentry said it’s impossible to attempt crime of recklessness – recklessness is not
intentional so how can you intend to commit it
D. Attempted voluntary manslaughter cannot be an attempted crime because they are crimes of
recklessness and negligence.
i. Exception: Court in Thomas said you could be charged with attempted voluntary
manslaughter provided that you went beyond mere preparation with the requirement
mental intent

2. Inchoate Conspiracy
I. Defined:
A. Conspiracy – an agreement between two more individuals to commit and unlawful act
i. Since the crime in inchoate, the ultimate crime to which the conspiracy is directed need not
be performed.
ii. Once the agreement is formed and the overt act is performed, the inchoate crime of
conspiracy has been committed.
B. 3 Elements:
i. (1) Agreement to do an unlawful act
a. The agreement + the overt act = inchoate crime of conspiracy
b. Often quiet implicit – not a contract/in writing (may never be reduced to explicit
terms)
ii. (2) Specific intent/purpose (like attempt) to achieve the goal or object of the conspiracy,
and
a. Typically inferred
iii. (3) Overt act in furtherance of the conspiracy
a. Most jurisdictions require a physical act, not just a meeting of the minds
24
 b. Statutes with an overt act requirement are often interpreted broadly.
§ It is sufficient that only one member acts
§ Doesn’t need to commit the act in question
c. Goal of this requirement is to distinguish between criminal agreements that are
purely mental and those that have been actualized
iv. *If you just agree to commit a crime, not enough, have to put the plan into motion
C. Unilateral v. Bilateral Conspiracy
i. Some jurisdictions (including most federal) adopt a bilateral approach and require two
sincere parties to the agreement
a. “takes two to tango”
ii. Some jurisdictions follow a unilateral approach, meaning a single individual can create an
agreement even if there is no true agreement with the other party
a. Often happens when informants or undercover police officers form agreements

II. Renunciation
A. ∆ must fully renounce the conspiracy by thwarting the conspiracy “under circumstances
manifesting a complete and voluntary renunciation of his criminal purpose.” MPC § 5.03(6)
i. Contacting the police or otherwise depriving the conspiracy of its effectiveness
B. Tougher to abandon than attempt – contacting the police or depriving the conspiracy of its
effectiveness
C. Some jurisdictions allow the defense when ∆s make a reasonable effort to stop the conspiracy
D. Some jurisdictions refuse to recognize the defense entirely, presumably on the old common law
rationale that the crime is complete once the agreement is formed and an overt act is
committed

III. Merger
A. Unlike attempts, conspiracy does not merge with its completed offense and liability does not
disappear
i. Means that liability for conspiracy does not disappear once the conspiracy is successfully
completed
B. Rationale for the non-merger rule is that conspiracy, a form of collective criminality, represents
a “distinct evil.”
C. Defense attorneys could argue double dipping, but alternative is that a conspiracy include
multiple criminals acting in concert and that is more dangerous than the same crime committed
by a single individual.

3. Solicitation
I. Defined:
A. Solicitation is both an inchoate offense and a mode of liability.
B. A ∆ who solicits another individual to commit a crime is guilty of the inchoate crime of
solicitation; if the solicited individual then carries out the crime, the solicitor is guilty of that
offense as well (at that point, the solicitation charge usually disappears because it merges with
the completed offense)
C. Elements of Solicitation:
i. (1) specific intent or purpose,
ii. (2) to solicit (hire, command, request, encourage, or invite),
iii. (3) a third party to perform a crime

25
II. Solicitation v. Conspiracy:
A. As a factual matter, most cases of solicitation will qualify as a conspiracy
i. Example: hiring a hitman for money constitutes an agreement to commit an unlawful act
and hence a conspiracy.
B. As a legal matter, requirements differ – it’s possible for a defendant to be guilty of soliciting
someone to commit a crime without going the further step of forming an agreement with them
to commit the crime.
i. First- Conspiracy statutes often require an overt act performed in furtherance of the
conspiracy, while most solicitation statutes do not.
ii. Second- The focus of the two crimes is slightly different.
a. Solicitation focuses on the acts and mens rea of the defendant alone – does he ask
someone to commit the crime for him?
b. The crime of solicitation does not depend on the response that the defendant
receives from the requires.
c. Conspiracy focuses on the relationship between the parties; it requires that the
second individual agrees to the proposal, thus creating the agreement that forms
the conspiracy offense.

III. Solicitation v. Attempts

A. Both attempts and solicitation require the defendant’s specific intent or purpose to commit the
underlying crime
B. Key difference between these inchoate offenses is their different act requirements
i. Solicitation requires no overt act
ii. Attempt liability requires that the ∆ perform whatever actions constitute a substantial step
or place them in dangerous proximity to success or whatever type of action would meet
that jurisdiction’s standard for attempt liability.

IV. Merger and Renunciation:

A. Merger
i. Most jurisdictions don’t want to convict for both solicitation and the completed crime, so it
merges like attempt but unlike conspiracy
ii. Merger of conspiracy and solicitation depends on the jurisdiction and if the elements of
both are met – asking vs. agreement
a. Others require the merger, arguing that a conspiracy necessarily begins with a
solicitation, making it a less-included offense
b. solicitation and conspiracy merge for purposes of sentencing
iii. Jurisdictions are divided on whether inchoate solicitation merged into inchoate conspiracy
iv. In some jurisdictions, can be punished for both solicitation and conspiracy if they meet the
elements for both, arguing that the crimes have difference elements – solicitation is based
on the asking while conspiracy is based on the agreement
B. Renunciation
i. Jurisdictions are split on whether to recognize a renunciation defense for solicitation
ii. MPC § 5.02(3) allows the defense if the ∆ persuades or prevents the solicitee from carrying
out the crime, and plenty of jurisdictions have adopted that rule.
a. Renunciation must be “complete and voluntary”
iii. some jurisdictions say it cannot be undone once the request is made

26
MODES OF LIABILITY
1. Accomplices
I. Defined:
A. Common Law:
i. Perpetrators were divided into two large categories: principals and accessories
ii. First degree:
a. Principals performed the actus reus
iii. Second degree:
a. Accessories there to help (holding shot gun casings, lookouts)
§ Actively assisting while the crime is being done
b. Accessories before the fact (help plan, collect instruments of crime)
c. Accessories after the fact (getaway car, nourishing bowl of broth, affirmation)
iv. Under the MPC and most states, there are just principals and accessories.
B. Today:
i. When an accomplice assists in the commission of an offense, the accomplice becomes
derivatively responsible for that crime, even though someone else (the principal
perpetrator) committed it.
ii. Mode of liability, not an inchoate offense
iii. Accomplices can be punished just as harshly as the principal perpetrators they assist
C. Two elements:
i. (1) assistance or support to the principal perpetrator
ii. (2) performed with the purpose or knowledge (depending on the jurisdiction) to facilitate
the crime

II. Assistance of Support / Actus Reus

A. The act requirement is very broad:
i. Not only includes aiding and abetting (meaning assisting), but also other types of support
like counseling, encouraging, advising, commanding, ordering, inducing, soliciting.
ii. Looking for an affirmative act to support the principle
B. Usually an accomplice is criminally responsible because he performs an affirmative act to
support the principal, though even words of encouragement might constitute the relevant act
of support
C. Being a bystander is usually not sufficient because their actions are considered omissions
i. Omissions are only sufficient if the person had a preexisting duty to act
D. Causal connection is not strong

III. Mens Rea – Purpose v. Knowledge

A. An accomplice must intend to aid or assist the principal’s perpetration of the crime (purpose or
knowledge)
B. Federal courts apply the purpose standard, also referred to as “specific intent”

27
 i. Learned Hand: accomplice defined as someone who “in some sort associates himself with
the venture, that he participate in it as something that he wishes to bring about, that he
seek by his actions to make it succeed.” – US v. Peoni
ii. Purpose can be inferred from knowledge. Jury can find for purpose if it is proven beyond a
reasonable doubt the defendant acted with knowledge.
C. State courts are split
i. Some use the purpose standard but other use the knowledge requirement
ii. MPC supports the purpose standard (MPC 2.06(3)) and some state adopted this
iii. Rosemond Rule:
a. “chosen, with full knowledge, to participate in the illegal scheme, no that, if all had
been left to him, he would have planned the identical crime”

IV. Natural and Probable Consequences Doctrine

A. Accomplice is liable for all other natural and probable consequences of the target offense.
i. Example: armed robbery where the principle kills a bank employee and the driver is waiting
outside … is the driver liable?
a. Some say yes if that result is N & P of the target offense he was assisting in.
B. Federal courts and the MPC reject this doctrine as overly expansive – only guilty for the crimes
you intend to assist in.
C. Unclear whether accessory must intend act that has natural and probably consequence that is a
crime OR must intend target crime that has the natural and probable consequence
D. Natural and Probable Consequences from Prettyman:
i. A trier of fact must find that the ∆, acting with
a. (1) knowledge of the unlawful purpose of the perpetrator; and
b. (2) the intent or purpose of committing, encouraging, or facilitating the commission
of a predicate or target offense;
c. (3) by act or advice aided, promoted, encouraging, or instigated the commission of
the target crime.
ii. Must also find:
a. (4) the ∆’s confederate committed an offense other than the target crime; and
b. (5) the offense committed by the confederate was a natural and probable
consequence of the target crime that the aided and abetted

V. Innocent Instrumentality Test

A. General rule is that the perpetrator who performs the actus reus of the crime is the principal,
while the criminal who remains “behind the scenes” is a mere accomplice.
i. This is an exception – When the “accomplice” actually uses an innocent person, such as a
child or someone who is mentally disabled/ill, that accomplice is actually the principle
perpetrator.
B. The instrumentality must remain non-culpable for the doctrine to apply
C. Can also include adults who are deliberately duped into performing an action they do not
realize is criminal in nature

VI. Defenses
A. Possible for the principle perpetrator be found not guilty but the accomplice be found guilty
i. No need for juries to be consistent
B. More straightforward defense is withdrawal or renunciation of the crime

28
2. Conspiracy Liability
I. Defined:
A. an agreement between two or more individuals to commit an unlawful act
B. Can be both an inchoate offense and a mode of liability
i. Mode of liability = conspiracy is used as a link to make the ∆ responsible for the crimes
committed by her co-conspirators
C. Three Essential Questions to Understand the Doctrine:
i. (1) how extensive is this vicarious liability?
a. Both conspiracy and accomplice liability of a form of vicarious liability
b. Liable for accomplice’s act (and natural and probable consequences)
ii. (2) how does one define the outer scope of the “conspiracy” that the ∆ is responsible for?
iii. (3) how does one withdraw from the conspiracy and terminate one’s vicarious responsibility
for the acts of co-conspirators?

II. Pinkerton Liability

A. Liability of conspirator:
i. (1) crimes committed that are part of conspiracy agreement
ii. (2) AND those that are “reasonably foreseeable” though not part of the conspiracy
agreement
iii. Narrow view = (1) alone
iv. Broad view = (1) + (2) together
B. Conspirators will be liable for crimes committed by co-conspirators that either:
i. (1) Form part of the conspiratorial agreement or
ii. (2) Stray beyond the conspiratorial agreement by where nonetheless a reasonably
foreseeable consequence of that agreement
C. Limitation:
i. Liability would not attach if the co-conspirator committed a crime that was nor reasonably
foreseeable to the ∆
D. MPC does not follow Pinkerton, only guilty for crimes you intend

III. Scope of conspiracy

A. Courts are generally willing to aggregate overlapping conspiracies to a single overarching
conspiracy when the ∆ must have been aware that the endeavor involved other persons and
transactions who are part of the agreement, even if the ∆ never corresponded or met with the
others

IV. Renunciation
A. Acts already performed by co-conspirators cannot be disowners but the link to future acts could
be severed if ∆ successfully withdraws from the conspiracy
B. Standard for withdrawal varies from jurisdiction, but most require that the ∆ perform an
affirmative act to disavow or defeat the conspiracy
C. common law rule is that an act of withdrawal is not a defense to a conspiracy charge because
the conspiracy is complete once the agreement has been made.
D. MPC does permit a withdrawal defense, but only if (1) the accused's renunciation was
voluntary, and (2) the accused thwarts the success of the conspiracy. MPC §5.03(6)
E. Simply regarding from actively pursuing the objectives of the conspiracy is insufficient to satisfy
the requirements of withdrawal
F. Can renunciate in three ways:
29
 i. Informing authorities
ii. Communicating withdrawal to the co-conspirators
iii. Dissolving the underlying agreement that forms the basis of the conspiracy
a. Common element among these possibilities is insufficient to satisfy the
requirements of withdrawal

JUSTIFICATIONS AND EXCUSES

1. Overview
I. Two ways to Classify
A. Excuse
i. shouldn’t have done that but because X was present, society cannot reasonably expect you
conform your behavior to standards
ii. Examples:
a. Insanity
b. Duress
c. Juvenile
§ Generally are not charged with specific crimes – charged as delinquents
§ Exceptions with certain statutes – 15/16 can be charged with murder
B. Justification
i. Have the crime but at the end of the day it is still the right thing; if the overall good is viable
ii. Necessity
iii.

2. The defenses
I. Self-Defense
A. The law privileges an act of defensive force that would otherwise constitute a crime
B. Non-deadly force is permitted in response to a non-deadly threat
i. Example: a person faced with a physical battery could use a battery of his own to stop the
aggressor
ii. Must repel with similar force
C. Use of deadly force is permitted to repel a serious attack such as rape or kidnapping
i. ∆ must show he acted according to a reasonable belief of an imminent threat of death or
serious bodily injury
ii. Requirements:
a. Imminent Threat / Reasonable Belief
§ Reasonable belief of an imminent threat of death or bodily injury
o ∆ must believe he actually faced a threat (subjective), but the threat must
have been reasonable (objective) **it’s a mix of both.
o Didn’t have to be an actual imminent threat
o What’s reasonable?
§ Subjective approach – whether the ∆’s belief was reasonable to
him
§ Objective approach – (1) whether the ∆ honestly believed he
faced a threat and force was necessary to repel it? (2) whether
the belief was objectively reasonable under the circumstances
§ SD cannot be too soon or too late (reasonable person)
§ Difficult with battered women’s syndrome; some states have loosened
guidelines
30
 § MPC rejected imminent threat – requires the defensive force be
“immediately necessary at the time of its deployment
b. Necessity / Duty to Escape
§ If the target can repel the attack without resorting to deadly force, then she
is required to do so
§ Castle Exception: no duty to retreat in your own home (does not
automatically mean that deadly force in justified though)
o Cannot extend the line to the yard or an alley (Peterson)
§ Stand your Ground Laws: laws that abrogate the duty to retreat in a variety
of situations
c. Proportional to the threat
D. Imperfect Self-Defense
i. Belief was not reasonable that you faced an imminent threat of death or serious bodily
injury
ii. Partial defense because it does not completely exonerate ∆
a. Without this doctrine = mistaken RB would be murder
b. If jurisdiction has this doctrine = voluntary manslaughter
iii. Mistake of fact – actor mistakenly believes that force is necessary and the belief was
unreasonable
iv. MPC Approach: a ∆ asserting this defense would succeed in using it a a defense for
intentional murder, but could still be convicted of a homicide offense based on negligence
or recklessness. (a reckless/negligent mistake about SD cannot negate the mens rea in a
crim such as manslaughter/negligent homicide)

3. Defensive Force by Police Officers

I. Police and Deadly Force
A. Old Common Law Rule:
i. Could use deadly force to stop a fleeing felon, but not misdemeanor
B. Tennessee v. Garner (4th amendment)
i. May use deadly force against a fleeing suspect when the officer reasonably believed that
the suspect poses an immediate danger to another person – either the police themselves or
the public at large
C. 18 USC § 242
i. Criminalizes civil rights violations – actions objectively unreasonable when judged from the
perspective of a reasonable officer on the scene
ii. Any individual operating under “the color of the law” can be prosecuted under this
D. State Statutes
i. Missouri statute, for example, justifies police use of force when the officer reasonably
believes that such use of force is immediately necessary to effect the arrest and also
reasonably believes the person to be arrested:
a. Has committed or attempted to commit a felony, or
b. Is attempting to escape use of a deadly weapon, or
c. May otherwise endanger life or inflict serious physical injury unless arrested without
delay
E. 42 USC § 1983
i. To recover must have section 1983 violation (exercising excessive force under the 4th
amendment)

31
 a. Must show the officer acted in a Willful/reckless disregard of a constitutional
requirement which has been made specific or definite – what he was doing was
wrong

4. Necessity
I. Idea is that it is better to break the law than to not break the law – criminal act was justified because
violating the law procured better results than not
A. “Choice of Evils” - Utilitarian balancing
i. Most essential part of the necessity defense is the ∆’s violation of the law produces a lesser
evil than if the ∆ had complied with the law
B. How to analyze:
i. Has to be a present and immediate threat
a. No future threat
ii. Cannot be responsible for the situation
iii. Cannot have another alternative but to violate the law
iv. Must be a causal relationship between the criminal act and the harm to be avoided
v. Defendant must not have continued the illegal conduct after the harm was averted
C. Defense to Murder
i. Common law – necessity no defense to murder
a. Can’t eat your friends to survive
ii. MPC – no restriction
a. Can eat your friends
D. Ridner Test:
i. Immediacy
ii. Violated no longer than having to
iii. Once the threat was gone, went back and did the right thing

5. Duress
I. Different from necessity because the person who issues the threat is trying to coerce an otherwise
innocent individual into committing a crime and if the innocent person succumbs, his or her crime
should be excused because the threat vitiated her autonomy
A. Is an affirmative defense

II. In order to show duress, ∆ must show:

A. They or a third party faced an imminent threat from another individual with no opportunity for
reasonable escape
i. Some jurisdictions are more specific about the threat – pets don’t count
B. The threat was sufficiently severe in nature
C. The crime committed was not murder
D. The defendant was not reckless or otherwise culpable in creating the circumstances that produced
the duress
E. Sometimes there is an additional requirement that the ∆ has to submit to proper authorities after
attaining a position of safety – prison breaks

III. Contento-Pachon
A. Three specific elements
i. An immediate threat of death/serious bodily harm
ii. A well-grounded fear it will be carried out, and
32
 iii. No reasonable opportunity for escape
iv. (Sometimes a fourth element is required: the D must submit to proper authorities after
attaining a position of safety)

IV. Common law evidentiary standard

A. Burden falls on the D to prove need for duress defense

V. “Person of reasonable firmness”

A. Would make pets ambiguous
B. Reasonable ness is kind of vague

VI. Not a defense to murder!

VII. Exception in the MPC:

A. If reckless in creating the harm, defense is not available to you

6. Insanity
I. Standards that have been introduced to determine whether a criminal was too insane to warrant
criminal punishment
A. M’Naghten cognitive test
i. To establish a defense, the defendant must not have known the quality or the nature of his act,
or if he did know, he must not have known that what he was doing was wrong
ii. A cognitive failing
iii. Two prongs sufficient to meet the standard:
a. He believes he is committing one act but is actually committing another
b. He correctly perceives the action but is unaware that it is wrongful
B. Irresistible impulse test
i. Can either satisfy M’Naghten or meet the volitional component (defect that prevents him from
complying with the law
ii. Supplements but does not replace M’Naghten
iii. Few states retain this, however
C. MPC’s “substantial capacity” test
i. M’Naghten and irresistible impulse fit within 4.01, which states that a person is not responsible
for criminal conduct if at the time of such conduct is a result of a mental disease or defect that
he lacks the substantial capacity either to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law
a. Appreciate – tracks cognitive
b. Conform – tracks volitional
§ Basically a marrying of M’Naghten and the irresistible impulse test
ii. MPC required only that the mental disease or defect negated a substantial capacity of the D to
meet of the D to meet these requirements

II. Definition of wrongfulness

A. M’Naghten includes “wrong” or “wrongfulness” without a definition
i. Can use a subjective or objective standard
ii. MPC drafters took no stance on this

III. Diminished capacity

33
A. Doctrine allows a ∆ who does not plead insanity to introduce evidence of mental illness to negate
the mens rea that the prosecution must establish as part of its burden
B. If mental illness negates a mental element of the crime, can downgrade to a lower crime or be
extinguished all together
C. This is a question of evidence

34